Sarah Mitton v JDR Business Group Pty Ltd T/A the Shed Cafe

[2018] FWC 2658

[2018] FWC 2658

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sarah Mitton
v
JDR Business Group Pty Ltd T/A The Shed Cafe
(U2018/4209)

DEPUTY PRESIDENT DEAN SYDNEY, 14 MAY 2018

Application for an unfair dismissal remedy.

[1] On 22 April 2018, Miss Sarah Mitton made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Miss Mitton’s application states that she commenced employment with JDR Business Group Pty Ltd T/A The Shed Cafe (the respondent) on 18 March 2018 and that her dismissal took effect on 15 April 2018.

[3] On 26 April 2018, correspondence was sent to Miss Mitton indicating that, based on the information contained in her application, it appeared she may not have served the minimum employment period. The correspondence required Miss Mitton to file a statement within seven days to support her claim of having served the minimum employment period.

[4] On 4 May 2018, correspondence was sent to Miss Mitton noting that she had previously been directed to file a statement in support of her claim that she had served the minimum employment period but had not done so. Miss Mitton was given until 4pm, 7 May 2018, to respond. Miss Mitton was advised that in the absence of any material being received, her application may be dismissed.

[5] On 7 May 2018, the respondent filed the Form F3 – Employers Response, objecting to the application on the grounds that Miss Mitton had not met the minimum employment period.

[6] On 10 May 2018, final attempts to contact Miss Mitton by telephone were made, and messages for Miss Mitton left asking her to contact the Commission.

[7] To date, Miss Mitton has not responded to the Commission.

[8] Section 382 of the Act provides that a person is protected from unfair dismissal if the person completed a period of employment of at least the minimum employment period.

[9] Section 383 of the Act sets out the minimum employment period:

383 Meaning of minimum employment period

The minimum employment period is:

(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(ii) immediately before the dismissal; or

(b) if the employer is a small business employer—one year ending at that time.

[10] Section 587(1) of the Act provides:

587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

[11] In the circumstances of this matter, I am satisfied Miss Mitton has not completed the required minimum employment period and accordingly her application has no reasonable prospects of success. Consequently, the application is dismissed under s.587(1)(c) of the Act.

[12] An order to that effect will issue with this decision.

DEPUTY PRESIDENT

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